Beijing Intellectual Property Court Judicial Protection Data Analysis Report (2015) IPHOUSE Judicial Data Research Center
Brief Introduction to the Editorial Organization Beijing IPHOUSE Network Technology Co., Ltd. (hereinafter IPHOUSE ) is jointly initiated and established by several experienced intellectual property professionals who have been in the field for more than a decade. IPHOUSE focuses on providing retrieving Chinese intellectual property judgment and analyzing the legal data thereof. As of March 2016, the IPHOUSE China Intellectual Property Judgment Instrument Database has collected more than 200,000 judgments from the people s courts at all levels for on intellectual property rights, and all the relevant laws and rules. This database becomes the most complete specialized intellectual property rights database in China. The IPHOUSE Judicial Data Research Center is the first institution established by IPHOUSE and specializes in researching judicial intellectual property rights data in China. IPHOUSE consists of more than 30 domestic and overseas famous intellectual property professionals, scholars, data analysis experts, etc. whom have the goal to develop and promote the research on China intellectual property rights big data. IPHOUSE endeavors at providing professional, authoritative and convenient judicial data services on China s intellectual property rights for Chinese and foreign corporate users, governmental departments, judicial departments, and other professionals. 2
IPHOUSE utilizes innovation to create new values and serves the Chinese economy with data! Beijing IPHOUSE Network Technology Co., Ltd. Add.: 17 Madian East Road, Haidian District, Beijing (100088) Tel.: +86 10 8200 4006 E-mail: info@iphouse.cn Website: www.iphouse.cn IPHOUSE Judicial Data Research Center Add.: 17 Madian East Road, Haidian District, Beijing (100088) Tel.: +86 10 8200 5878 The translation of this report is prepared by: For more information, please visit: www.beijingeastip.com 3
CONTENTS Preface... 6 Part One Overall Analysis... 7 I. Statement on Analysis Sample... 7 II. Overall Data of ClosedCases... 7 III. Innovative Judgment... 8 Part Two General Analysis... 10 I. Administrative Authorization and Determination Cases... 10 1.Types of Administrative Authorization and Determination Cases.. 10 2.Distribution of Grounds for Administrative Authorization and Determination Cases... 11 3.Withdrawal Rate of Administrative Authorization and Determination Cases... 12 4.Revocation of Administrative Actions of Administrative Departments... 12 II. Civil Cases... 15 1.Analysis on Trial Levels of Civil Cases... 15 2.FirstInstance Civil Case Analysis... 16 3.Analysis on the Winning Rate of Plaintiff in First Instance Civil Cases... 17 4.Analysis on Mediation and Cancellation Rate of First Instance Civil Cases... 17 5.Second Instance Civil Case Distribution... 17 6.Analysis on Cancellation of First Instance Judgment in Second Instance Civil Cases... 19 7.Analysis on the Mediation and Cancellation Rate of Second Instance Civil Cases... 19 Part Three SpecificAnalysis... 19 I. Technical Cases... 19 1.Technical Case Types... 19 2.Participation of Technical Investigation Officers in Trial... 20 3.Analysis on Plaintiff s Winning Rate in Technical Cases... 20 II. Analysis on the Amount Ordered to Compensate in First-instance Civil Cases... 21 1.Overall Data... 21 2.Trademark Cases... 22 4
3.Patent Cases... 23 4.Copyright Cases... 26 5.Other Cases... 27 6.Maximum Compensation Cases... 28 7.Cases with Full Support for Compensation Amount Claimed... 28 8.Comparison of Compensation Orderedin Various Types of Cases. 29 III. Length of Trials... 30 1.Overall Analysis... 31 2.Analysis on Length of Trial of Various Types of Cases... 31 3.Analysis on Length of Trial of Civil Cases... 32 4.Analysis on Length of Trial of Administrative Authorization and Determination Cases... 32 IV. Data of Cases Involving Foreign Affairs and Hong Kong, Macao and Taiwan... 33 1.Data of Cases Involving Foreign Affairs... 33 2.Data of Cases Involving Hong Kong, Macao and Taiwan... 34 V. Participation of Juries in Trial... 35 Part Four Analysis on the Judge Teams... 36 I. Data of Presidents... 37 1.Team of Judge ChiSU... 37 2.Team of Judge CHEN Jinchuan... 42 3.Team of Judge SONG Yushui... 48 II. Data of Presiding Judges... 53 1.Team of Judge DU Changhui... 54 2.Team of Judge JIANG Ying... 57 3.Team of Judge ZHANG Xiaojin... 63 3.Team of Judge ZHANG Xiaoxia... 67 III. Data of Other Judge Teams... 74 1.Team of Judge RUI Songyan... 75 2.Team of Judge JIANG Shuwei... 80 3.Team of Judge ZHOU Liting... 85 4.Team of Judge LI Yanrong... 90 5.Team of Judge ZHANG Jian... 94 6.Team of Judge ZHAO Ming... 100 7.Team of Judge FENG Gang... 105 5
Preface Intellectual property right is the core of innovation-driven development. Encouraging and protecting innovation is a key issue in China s economic development, and also the foundation for accelerating the implementation of innovation driving strategy and constructing a society governed by law. The Beijing Intellectual Property Court, founded on November 6, 2014, is the first specialized intellectual property court in China. Distinctively featured by overall types of intellectual property cases handled, national leading cases docketed and closed, the judge teams abundant experiences in trial and judgment, etc., the Beijing Intellectual Property Court, as the analysis target, could well represent China s judicial protection level of intellectual property rights in recent years. Moreover, the Beijing Intellectual Property Court is the forerunner, vanguard and experimental field of judicial reform, and the significance of its reform and innovation is not only limited to intellectual property cases and trials. In this data analysis, IPHouse Judicial Data Research Center developed an analysis by taking the cases closed by the Beijing Intellectual Property Court in 2015 as samples, and provides a general overview of the current status of judicial intellectual property protection in China. This report consists of four parts. Part One analyzes the overall operation status of the Beijing Intellectual Property Court in 2015; Part Two conducts a general analysis from two perspectives, administrative intellectual property cases and civil intellectual property cases; Part Three specially analyzes the factors that the public are most concerned about, including the trial of technical cases, the amount ordered to compensate, length of trial, the cases involving foreign affairs and involving Hong Kong, Macao and Taiwan, and the participation of juries, etc.; Part Four conducts an individualized analysis on the judges --- it conducts a multi-dimensional analysis on total 14 judge teams, including 3 presidents, 4 presiding judges, and 7 judges selected at random from the first 18 personnel-system judges who have worked for more than one year in the Beijing Intellectual Property Court. 6
Part One Overall Analysis I. Analysis Sample Description This data analysis uses total of 5,022 judgments of the closed cases by the Beijing Intellectual Property Court, from January 1 to December 31, 2015,collected in the China Intellectual Property Judgment Database (www.iphouse.cn) of IPHOUSE. According to the relevant statistics, the Beijing Intellectual Property Court closed 5,432 cases in 2015, and this data statistics samples accounted for 92.45% of the total data. II. Overall Data of Cases Concluded 3000 2500 Quarterly statistics chart on the quantity of cases closed by the Beijing Intellectual Property Court in 2015 120.89% 140.00% 120.00% 2000 2421 100.00% 1500 1000 500 553 72.15% 952 1096 15.13% 80.00% 60.00% 40.00% 20.00% 结案数量 Number of cases concluded Comparative growth rate quarter by quarter 0 1 2 3 4 0.00% According to the sample data, the number of cases closed by the Beijing Intellectual Property Court in 2015 presents a quarterly growing trend, wherein, the growth rates in the second quarter and the fourth quarter were relatively high, while the third quarter is relatively low. 7
III. Judgment Innovations Through deep researches on all sample judgments, we have discovered that the following seven items are the innovations in the trials of the Beijing Intellectual Property Court in 2015: Innovation 1: All members of the Adjudication Committee of the Beijing Intellectual Property Court directly opened a court session to try the significant issues concerning the application of law involved in cases, a nationwide precedent. [Typical Case]: (2015) Jing Zhi Xing Chu Zi No. 177 Innovation 2: Precedents were quoted as reasoning for judgment. [Typical Cases]: (2014) Jing Zhi Xing Chu Zi No. 1 (2014) Jing Zhi Xing Chu Zi No. 50 Innovation 3: Technical investigation officers participated in trials. [Typical Cases]: (2015) Jing Zhi Xing Chu Zi No. 2655 (2015) Jing Zhi Xing Chu Zi No. 5191 (2015) Jing Zhi Xing Chu Zi No. 5220 Innovation 4: Element-based document drafting style adopted. [Typical Case]: (2015) Jing Zhi Xing Chu Zi No. 903 Innovation 5: Opinions were solicited publicly from academic institutions, and entirely incorporated into judgments. [Typical Cases]: (2015) Jing Zhi Xing Chu Zi No. 91 (2015) Jing Zhi Xing Chu Zi No. 97 (2015) Jing Zhi Xing Chu Zi No. 98 Innovation 6: Citations were added to judgments. 8
[Typical Case]: (2015) Jing Zhi Min Zhong Zi No. 1697 Innovation 7: Different opinions of the collegiate bench were incorporated into judgments. [Typical Case]: (2015) Jing Zhi Min Zhong Zi No. 1750 9
Part Two General Analysis I. Types of Administrative Authorization and Determination Cases [1] In accordance with the Provisions of the Supreme People s Court on Case Governance of Intellectual Property Courts in Beijing, Shanghai and Guangzhou, the Beijing Intellectual Property Court is the exclusive court of first instance administrative cases on authorization and determination of intellectual property rights. This is the typical characteristic distinguishing the Beijing Intellectual Property Court from other people s courts of different levels. Among the sample data, there were 3,394 first instance administrative intellectual property authorization and determination cases, accounted for 67.58% of total samples, and 98.41% of total administrative cases. 1. Types of Administrative Authorization and Determination Among the 3,394 administrative intellectual property authorization and determination cases, there were 3,084 trademark cases, accounted for 90.87% of total administrative authorization and determination cases; and there were 310 patent cases, accounted for 9.13% of total administrative authorization and determination cases. Among patent cases, there were 145 invention patent cases, accounted for 46.77% of total administrative patent authorization and determination cases; there were 77 utility model patent cases, accounted for 24.84% of total administrative patent authorization and determination cases; and there were 88 design patent cases, accounted for 28.39% of total administrative patent authorization and determination cases. [1] The scope of administrative authorization and determination cases adopted the definition in the Opinions of Beijing High People s Court on Normalizing the Grounds for Administrative Litigation Cases of Trademarks (Jing Gao FaFa [2014] No. 392) and the Regulations of the Beijing High People s Court on Normalizing the Grounds for Administrative Litigation Cases of Patents and Trademarks (Jing Gao FaFa [2012] No. 340); and the cases exceeding the scope of the definition and some cases without clearly stated grounds in the judgment instruments shall be counted as other types of administrative cases. 10
90.87% 9.13% 28.39% 24.84% 46.77% 发明专利 Invention patent 商标 Trademark 实用新型 Utility model 专利 Patent 外观设计 Appearance design 2. Distribution of Grounds for Administrative Authorization and Determination Cases The distribution of grounds for administrative intellectual property authorization and determination cases of the Beijing Intellectual Property Court in 2015 is as shown below: Trademark: Grounds Caseload Percentage Rejection Appeal 2058 66.73% Opposition Appeal 299 9.70% Invalidation (dispute) 494 16.02% Cancellation Appeal 218 7.07% Other Administrative Disputes 15 0.49% Total 3084 100% Patent: Grounds Caseload Percentage Patent Type Invention Rejection 90 29.03% patent Appeal Utility model Caseload Percentage [2] 86 95.56% 3 3.33% [2] This indicates the percentage of various types of patents to the total patent cases of corresponding grounds, same below. 11
Design 1 1.11% Invention 59 26.82% Invalidati 220 70.97% patent on Utility 74 33.64% model Design 87 39.55% Total 310 100% -- 310 100% 7.07% [218] 0.49% [15] 16.02% [494] 9.70% [299] 66.73% [2058] 驳回复审 Rejection Appeal 异议复审 Opposition Appeal 70.97% [220] 29.03% [90] 驳回复审 Rejection Appeal Invalidation 无效宣告请求 Invalidation 撤销复审 Cancellation Appeal 其他行政纠纷 Other Administrative Disputes [90] Caseload 29.03% Percentage (Trademark) (Patent) 3. Withdrawal Rate of Administrative Authorization and Determination Cases Among the sample data, there were 240 administrative authorization and determination cases withdrawn by the plaintiff, with a withdrawal rate of 7.07%. Wherein, there were 193 trademark cases withdrawn, accounted for 6.26% of total administrative trademark authorization and determination cases; and there were 47 patent cases withdrawn, accounted for 15.16% of total administrative patent authorization and determination cases. 4. Revocation of Administrative Actions of Administrative Departments Among the sample data, there were total 539 cases involving revocation of 12
administrative actions of administrative departments, as judged by the court, with a revocation rate of 17.28% [ 3] ; wherein, there were 511 administrative trademark authorization and determination cases involving revocation of administrative actions of administrative departments, with a revocation rate of 17.86%; and there were 28 administrative patent authorization and determination cases involving revocation of administrative actions of administrative departments, with a revocation rate of 10.85%. As analyzed from grounds, the data about revocation of administrative actions of administrative departments in various types of cases are as shown below: Trademark: Grounds Caseload Cancellation Rate Rejection Appeal 322 16.59% Opposition Appeal 28 10.57% Invalidation 96 21.67% (dispute) Cancellation Appeal 65 32.66% Other 0 0.00% Administrative Disputes Total 511 -- [3] Revocation rate = revocation of administrative actions of administrative departments caseload /total number of administrative authorization and determination cases closed by judgments; same below. 13
Patent: Grounds Caseload Cancellat ion Rate Patent Type Caseload Percenta ge Rejection Appeal 7 8.43% Invention patent 7 100% Invention 7 33.33% Invalidation 21 12.00% patent Utility 8 38.10% model Appearanc 6 28.57% e design Total 28 -- -- 28 -- The comparison of the percentage of administrative intellectual property authorization and determination cases involving revocation of administrative actions of administrative departments for different grounds is as shown below: 35.00% 30.00% Revocation rate of trademark cases 32.66% 25.00% 20.00% 15.00% 10.00% 5.00% 16.59% 10.57% 21.67% 0.00% 驳回复审异议复审无效宣告 ( 争议 ) 撤销复审 Rejection Appeal Opposition Appeal Invalidation (dispute) Cancellation Appeal 14
14.00% 12.00% 10.00% 8.00% 6.00% 4.00% 2.00% 0.00% Revocation rate of patent cases 12.00% 8.43% 驳回复审 Rejection Appeal 无效宣告 Invalidation II. Civil Cases 1. Analysis on Trial Level of Civil Cases Among the sample data, there were 1,573 civil cases, including 377 first instance civil cases and 1,196 second instance civil cases, accounted for 23.97% and 76.03% of total civil cases respectively. Obviously, among the civil non-technical intellectual property cases, the Beijing Intellectual Property Court gave priority to the second instance cases, and this was consistent with the governance scope of the Beijing Intellectual Property Court as the second instance intellectual property people s court (non-technical type) in Beijing. 23.97% 76.03% 一审 First instance 二审 Second instance 15
2. First-Instance Civil Case Type Analysis 70.56% [266] 1.06% [4] 15.38% [58] 2.39% [9] 4.51% [17] 6.10% [23] [34] [24] 商标 ht 专利 Patent Copyrig Copyright Trademark 植物新品种 New plant variety 技术秘密 Trade secret 其他 Others 软件著作权 Software copyright 其他著作权 Other copyrights [23] Caseload 6.10% Percentage Among the first instance civil cases, there were 313 technical cases, accounting for 83.02% of the first instance civil cases closed by the Beijing Intellectual Property Court in 2015, including as patents (266), new plant variety (4), trade secrets (9), software copyright (34) [4], etc. This is consistent with the governance scope of the Beijing Intellectual Property Court as the first instance court of technical cases in Beijing. 3. Analysis on the Winning Rate of Plaintiff in the First Instance Civil Cases Among the sample data, there were total 94 first instance civil cases closed by means of judgment by Beijing Intellectual Property Court in 2015, and wherein, there were 68 cases in which plaintiff s claims were supported (including partially supported), and the winning rate of plaintiff in first instance civil cases was 72.34%. 4. Analysis on Mediation and Cancellation Rate of the First Instance Civil Cases Among the sample data, there were 250 first instance civil cases closed by means [4] The types of copyright not made clear in the judgments were all counted as other copyrights. 16
of mediation and cancellation, accounting for 66.31% of total first instance civil cases. 5. The Second Instance Civil Case Type Distribution 5.52% [66] 2.84% [34] 2.59% [31] 1.92% [23] 1.09% [13] 6.69% [80] 79.35% [949] 著作权 Copyright 商标 Trademark 专利 Patent 不正当竞争 Unfair competition 技术合同 Technical contract 特许经营合同 Franchise operation contract 其他 Others [949] Caseload 79.35% proportion In accordance with the Provisions of the Supreme People s Court on Case Governance of Intellectual Property Courts in Beijing, Shanghai and Guangzhou, the cases on appeal against the first instance cases of intellectual property rights such as copyright, trademark, technical contract, unfair competition, etc. tried by local people s courts in Beijing shall be tried by the Beijing Intellectual Property Court. Therefore, the degree of the civil judicial protection status of intellectual property rights in Beijing can be deducted from the cases closed by the Beijing Intellectual Property Court. [5] 6. Analysis on Cancellation of First Instance Judgment in Second Instance Civil Cases Among the sample data, there were 53 first instance judgments cancelled (including partially cancelled) in the second instance trial of the Beijing Intellectual Property Court in 2015, and the cancellation rate of the first instance judgments was 4.43%. Where, there were 22 first instance judgment cases cancelled by means of judgment, and 31 cancelled by means of ruling, and the details are as shown below: [5] Patent cases were cases pending before the establishment of the Beijing Intellectual Property Court, and do not represent second instance civil patents trials in Beijing. 17
Case Closed Result Caseload (case) Types Judgment Cancelled the first instance judgment 16 Partially affirmed and partially 6 cancelled the first instance judgment Ruling Cancelled the first instance ruling 27 Cancelled the first instance judgment, 1 and rejected the plaintiff s complaint Cancelled the first instance judgment, 3 and remanded retrial at the first instance court Total -- 53 Analysis on the reasons for the Beijing Intellectual Property Court to cancel the first instance judgment in second instance civil cases in 2015: Judgment: Reasons for re-judgment Caseload (case) Percentage Errs in fact findings, and 9 40.91% application of law Errs in fact findings 6 27.27% Errs in application of law 6 27.27% New evidence 1 4.55% Total 22 100% Ruling: Reasons for re-judgment Caseload (case) Percentage Improper expression in the first 18 58.06% instance judgment results Withdrawal of the first instance 6 29.35% complaints by the party concerned in the first instance Unclear fact finding and erred in application of law in the first instance 2 6.25% 18
Unclear fact finding in the first instance Erred application of law in the first instance Violation of statutory procedures in the first instance 1 3.23% 2 6.25% 1 3.23% New evidence 1 3.23% Total 31 100% 7. Analysis on the Mediation and Cancellation Rate of the Second Instance Civil Cases Among the sample data, there were 415 second instance civil cases closed by means of mediation and cancellation, accounted for 34.70% of total second instance civil cases. Part Three Specific Analysis I. Technical Cases In accordance with the Provisions of the Supreme People s Court on Case Governance of Intellectual Property Courts in Beijing, Shanghai and Guangzhou, the Beijing Intellectual Property Court is the exclusive court of first instance civil technical cases, such as patent, new plant variety, integrated circuit layout design, trade secrets, computer software, etc. in Beijing, as well as the exclusive court of first instance administrative authorization and determination technical cases such as patent, new plant variety, integrated circuit layout design, etc. nationwide (excluding Hong Kong, Macao, and Taiwan areas). 1. Technical Case Type Among the sample data, there were 634 first instance cases of technical type closed by the Beijing Intellectual Property Court in 2015, including 587 patent cases (including 266 civil patent cases and 321 administrative patent cases), 34 software copyright cases, 9 trade secret cases, and 4 new plant variety cases, accounted for 19
16.58% of total first instance cases closed. 2. Participation of Technical Investigation Officers in Trial On October 22, 2015, the Technical Investigation Office of the Beijing Intellectual Property Court was established, and the first batch of technical investigation officers was formally appointed. Among the sample data, there were 12 cases in which technical investigation officers participated in judgment and litigation, and all of them were administrative cases on authorization and determination of patents. The cases in which technical investigation officers participated in litigation accounted for 6.45% of total technical cases (186) closed by the Beijing Intellectual Property Court by means of judgment after establishment of the Technical Investigation Office of the Beijing Intellectual Property Court. The details about the cases in which technical investigation officers participated in trial are as shown below: Cases tried with the participation of technical investigation officers of the Beijing Intellectual Property Court in 2015 Utility model invalid 3 6 refused 6 invention patent 9 3. Analysis on Plaintiff s Winning Rate in Technical Cases Among the sample data, there were total 83 first instance civil technical cases, including 58 cases where plaintiff s claims were supported (including partially supported). The winning rate of the first instance plaintiff in technical cases accepted by the Beijing Intellectual Property Court in 2015 was 69.88%, slightly lower than the average winning rate of the plaintiff in the first instance civil cases. 20
30.12% 69.88% 一审技术类案件原告胜诉率 Winning rate of plaintiff in first-instance technical cases II. Analysis on the Amount Judged to Compensate of First-instance Civil Cases Among the 68 first instance civil cases where the Beijing Intellectual Property Court judged to support or partially support plaintiff s claims in 2015, there were total 54 intellectual property right infringement cases in which right holders claimed for compensation for damages. In the following, the compensation amount of the 54 case samples would be analyzed. 1. Overall Data 1.1. Basic information Total amount claimed (RMB) 51,352,993 Average amount claimed per case 950,981 (RMB) Total amount ordered to 24,383,763 compensate (RMB) Average amount ordered to 451,551 compensate per case (RMB) Average appeal support rate 47.48% 1.2. Distribution of amount ordered to compensate 21
Distribution chart of the amount ordered to compensate of the cases closed by the Beijing Intellectual Property Court in 2015 9.26% [5] 12.96% [7] 33.33% [18] 11.11% [6] 12.96% [7] 16.67% [9] 3.70% [2] (Unit: Ten thousand Yuan) 300 100-300 50-100 30-50 10-30 [2] Caseload 5-10 3.70% proportion 5 According to the above data, in the first instance civil cases accepted by the Beijing Intellectual Property Court in 2015, the amount ordered to compensate concentrated betweenrmb100,000 RMB300,000, accounted for 33.33% of total compensation cases; the cases in which the amount ordered to compensate was more than RMB100,000 accounted for 77.78% of total compensation cases; the cases in which the amount ordered to compensate was RMB500,000 RMB1,000,000 and those in which the amount ordered to compensate was RMB500,000 RMB1,000,000 accounted for the same percentage, namely 12.96%. 2. Trademark Cases 2.1. Basic information Caseload (case) 6 Total amount claimed (RMB) 4,740,000 Average amount claimed per case 790,000 (RMB) Total amount ordered to 3,720,000 compensate (RMB) Average amount ordered to 620,000 compensate per case (RMB) Average appeal support rate 78.48% 2.2. Distribution of amount ordered to compensate Amount ordered to Caseload (case) Percentage compensate (RMB10,000) 300 1 16.67% 22
10-30 4 66.67% 5-10 1 16.67% According to the above data, the amount ordered to compensate in the first instance trademark cases docketed by the Beijing Intellectual Property Court in 2015 was primarily RMB100,000 RMB300,000, accounted for 66.67% of total trademark compensation cases. 3. Patent Cases 3.1. Basic information Caseload (case) 43 Total amount claimed (RMB) 41,652,608 Average amount claimed per case 968,665 (RMB) Total amount ordered to 19,786,378 compensate (RMB) Average amount ordered to 460,148 compensate per case (RMB) Average appeal support rate 47.50% 3.2. Distribution of amount ordered to compensate Amount ordered to Caseload (case) Percentage compensate (RMB 10,000) 300 1 2.33% 100-300 6 13.95% 50-100 6 13.95% 30-50 8 18.60% 10-30 13 30.23% 5-10 4 9.30% 5 5 11.63% According to the above data, the amount ordered to compensate in the first instance patent cases docketed by the Beijing Intellectual Property Court in 2015 was primarilyrmb100,000 RMB500,000, accounted for 48.84% of total patent 23
compensation cases; and the cases in which the amount ordered to compensate was more than RMB100,000 accounted for 79.07% of total patent compensation cases. Compared with trademark cases, the distribution of the compensation amount of patent cases was more scattered. 3.3. Patent Types A. Invention patent: Caseload (case) 22 Total amount claimed (RMB) 26,353,067 Proportion to the total amount 63.27% claimed of patent cases Average amount claimed per case 1,197,866 (RMB) Total amount ordered to 13,965,497 compensate (RMB) Percentage to the total amount 70.58% ordered to compensate in patent cases Average amount ordered to 634,795 compensate per case (RMB) Average appeal support rate 52.99% B. Utility model patent: Caseload (case) 3 Total amount claimed (RMB) 762,701 Percentage to the total amount 0.18% claimed of patent cases Average amount claimed per case 254,234 (RMB) Total amount ordered to 360,000 compensate (RMB) Percentage to the total amount 1.82% ordered to compensate in patent cases 24
Average amount ordered to 120,000 compensate per case (RMB) Average appeal support rate 47.20% C. Design patent: Caseload (case) 18 Total amount claimed (RMB) 14,536,841 Percentage to the total amount 34.90% claimed of patent cases Average amount claimed per case 807,602 (RMB) Total amount ordered to 5,460,881 compensate (RMB) Percentage to the total amount 27.60% ordered to compensate in patent cases Average amount ordered to 303,382 compensate per case (RMB) Average appeal support rate 37.57% The percentage of the amount ordered to compensate in various patent cases in the total amount ordered to compensate in patent cases 27.60% 1.82% 70.58% 发明专利 Invention patent 实用新型专利 Utility model patent 外观设计专利 Appearance design patent 25
(Unit: Yuan) 700000 600000 Average amount orderedto compensate and claim support rate in various patent cases 634795 52.99% 47.20% 60.00% 50.00% 500000 400000 300000 37.57% 303382 40.00% 30.00% 200000 100000 0 120000 发明专利实用新型专利外观设计专利 Invention patent Utility model patent Appearance design patent 20.00% 10.00% 0.00% 平均判赔金额 Average amount ordered to compensate Average 平均诉求支持率 claims support rate According to data analysis, among the patent cases closed by the Beijing Intellectual Property Court in 2015, invention patent cases were by far higher than utility model and design cases in terms of the total amount ordered to compensate, the average amount ordered to compensate per case, and the average appeal support rate; the design patent cases were higher than utility model patent cases in terms of the total amount ordered to compensate and the average amount ordered to compensate per case, but were nearly 10% lower than utility model patent cases in terms of average appeal support rate. This shows that, the compensation claimed by the right holders for infringement of utility model patents was close to that affirmed by the Court. 4. Copyright Cases 4.1. Basic information Caseload (case) 3 Total amount claimed (RMB) 4,510,385 Average amount claimed per case 1,503,462 (RMB) Total amount ordered to 727,385 compensate (RMB) Average amount ordered to 242,462 26
compensate per case (RMB) Average appeal support rate 16.13% 4.2. Distribution of amount ordered to compensate Amount ordered to compensate Caseload (case) (RMB) 72,385 1 120,000 1 535,000 1 5. Other Cases 5.1. New plant variety Caseload (case) 1 Total amount claimed (RMB) 400,000 Average amount claimed per case 400,000 (RMB) Total amount ordered to 100,000 compensate (RMB) Average amount ordered to 100,000 compensate per case (RMB) Average appeal support rate 25.00% 5.2. Business secrets Caseload (case) 1 Total amount claimed (RMB) 50,000 Average amount claimed per case 50,000 (RMB) Total amount ordered to 50,000 compensate (RMB) Average amount ordered to 50,000 compensate per case (RMB) Average appeal support rate 100.00% 27
6. Maximum Compensation Cases Among the sample data, the case with the maximum amount ordered to compensate was a civil dispute case involving cosmetic device design patent (Patent No.: ZL201130151611.3). The details are as shown below: Cases (2015) Jing Zhi Min Chu Zi No. 266 Case Type Design patent Amount claimed (RMB 320 10,000) Amount ordered to 320 compensate (RMB 10,000) Support rate 100% 7. Cases with Full Support for Compensation Amount Claimed Among the 54 cases involving the compensation of damages for intellectual property infringement handled by the Beijing Intellectual Property Court to support or partially support plaintiff s claims in 2015, there were 10 cases where the court ordered to fully support the amount claimed by the right holders, accounted for 18.52% of total cases (54), indicating that the Beijing Intellectual Property Court provided high-degree protection for the right holders in civil infringement cases. The details of such cases are as shown below: Cases Case Type Compensation amount (RMB 10,000) (2015) Jing Zhi Min Chu Zi No. 266 Design patent 320 (2014) Jing Zhi Min Chu Zi No. 52 Trademark 300 (2015) Jing Zhi Min Chu Zi No. 204 Invention patent 102.801 [6] (2015) Jing Zhi Min Chu Zi No. 186 Invention patent 102.815 (2015) Jing Zhi Min Chu Zi No. 187 Invention patent 102.811 [6] The right holder requested RMB1,000,000 as compensation for damages and RMB30,000 as reasonable expenditure. The Court fully supported the RMB1,000,000 as compensation for infringement and RMB28,010 reasonable expenditure. 28
(2015) Jing Zhi Min Chu Zi No. 188 Invention patent 102.7949 (2015) Jing Zhi Min Chu Zi No. 192 Invention patent 102.761 (2014)Jing Zhi Min Chu Zi No. 85 Trademark 30 (2014) Jing Zhi Min Chu Zi No. 87 Trademark 10 (2014) Jing Zhi Min Chu Zi No. 64 Business secrets 5 8. Comparison of Compensation Judged in Various Types of Cases 8.1. Comparison of average amount ordered to compensate in various types of cases Comparison of average amount ordered to compensate in (Unit: Yuan) various types of cases 700000 600000 620000 500000 460148 400000 300000 200000 242462 100000 0 商标专利著作权 Trademark Patent Copyright 8.2. Comparison of average rate of support for compensation ordered in various types of cases 29
90.00% 80.00% 70.00% 60.00% 50.00% 40.00% 30.00% 20.00% 10.00% 0.00% Comparison of average rate of support for compensation ordered in various types of cases 78.48% 47.50% 16.13% 商标专利著作权 Trademark Patent Copyright According to the above data analysis, among the cases closed by the Beijing Intellectual Property Court in 2015, the order of cases from high to low on the amount ordered to compensate and support rate was trademark cases, patent cases and copyright cases. It shall be noted that, among the sample data, there was a small number (6) of first instance civil trademark cases involving compensation judgment, and in 1 case therein, the total compensation amount claimed RMB3,000,000 was fully supported, so the average amount ordered to compensate per case and the average support rate of compensation judgment of trademark cases were relatively high. The average support rate of compensation judgment of copyright cases was greatly different from trademark and patent cases, indicating that the expectation on the compensation amount of right holders had a relatively great difference from that identified by the Court in copyright cases. III. Length of Trial [7] Among the sample data, there were 3,777 judgments according to which the [7] In the data report, length of trial is only counted by judgment, and does not consider those by ruling and mediation, etc.; length of trial is only calculated as per the difference between docketing time and judgment time, and does not consider other factors such as suspension of litigation, involving foreign affairs, and involving Hong Kong, Macao and Taiwan, etc.; the calculation result is rounded out. The length of trial of other parts herein is also applicable to this principle. 30
length of trial and judgment date of cases could be confirmed, and the analysis on length of trial was just based on such sample judgments. 1. Overall Analysis The average length of trial of the cases already judged and closed by the Beijing Intellectual Property Court was 125 days, where civil cases and administrative cases was 94 days and 132 days, respectively. 平均审理时间 Average length of trial 125 民事案件 Civil cases 94 行政案件 Administrative cases 132 0 20 40 60 80 100 120 140 2. Analysis on Length of Trial of Various Types of Cases Among the civil first instance cases closed by the Beijing Intellectual Property Court in 2015, the ranking by length of trial from high to low was patent, copyright and trademark cases; among the civil second instance cases, the ranking by length of trial length from high to low was patent, trademark and copyright cases. The ranking of administrative first instance cases by length of trial length from high to low was patent and trademark. [8] [8]Among the sample data, there was 1 second instance administrative case closed by the Beijing Court of Intellectual Property Right in 2015, so it is not considered here. 31
民事一审 Civil first instance 169 209 259 民事二审 Civil second instance 63 89 80 Administrative first 行政一审 instance 180 128 0 50 100 150 200 250 (day) 300 专利 Patent 商标 Trademark 著作权 Copyright 3. Analysis on Length of Trial of Civil Cases Among civil cases, the average length of trial of the first instance cases was 251 days, and the second instance cases was 67 days. Civil second 民事二审 instance 67 Civil first instance 民事一审 251 0 50 100 150 200 250 300 4. Analysis on Length of Trial of Administrative Authorization and Determination Cases As seen from the grounds for administrative authorization and determination cases, among trademark cases, the ranking by length of trial length form high to low was cancellation appeal, opposition appeal, invalidation (dispute), rejection appeal; while the ranking of patent cases by length of trial length from high to low was invalidation 32
and rejection appeal. The difference in the length of trial length of administrative cases of various patents was smaller than that in the length of trial length of administrative cases of trademarks. Statistics about length of trial of administrative authorization and determination cases of the Beijing Intellectual Property Court in 2015 Trademark 商标 104 192 179 166 专利 Patent 181 179 撤销复审 Cancellation Appeal 异议复审 Opposition Appeal Invalidation 无效宣告 (dispute) ( 争议 ) 驳回复审 Rejection Appeal Invalidation 无效宣告 0 50 100 150 200 250(day) IV. Data of Cases Involving Foreign Affairs and Involving Hong Kong, Macao and Taiwan 1. Data of Cases Involving Foreign Affairs Among the sample data, there were total 1,095 cases involving foreign affairs, accounted for 21.80% of total samples, exceeding 1/5, indicating that among the cases closed by the Beijing Intellectual Property Court in 2015, the cases involving foreign affairs accounted for a big percentage. 78.20% 21.80% 涉外案件 Cases involving foreign affairs 33
Among the cases involving foreign affairs, the data of main countries involved are as shown below: Country Caseload Percentage USA 395 36.07% Germany 145 13.24% France 124 11.32% Italy 121 11.05% UK 100 9.13% Japan 69 6.30% Canada 46 4.20% Korea 29 2.65% According to the above data analysis, among the cases involving foreign affairs, there were 395 cases involving U.S. corporations, accounted for 36.07% of total cases involving foreign affairs, and around 2.7 times the cases involving Germany which ranked the second place, indicating that the economic and trading communication between China and the U.S. were constantly strengthened. Among the cases involving U.S. corporations, there were 346 administrative cases and 49 civil cases, and the detailed data are as shown below: Case Nature Case Type Caseload Percentage [9] Administrative Trademark 331 95.66% Patent 15 4.34% Civil Trademark 19 38.78% Patent 6 12.24% Copyright 24 48.98% 2. Data of Cases Involving Hong Kong, Macao and Taiwan Among the sample data, there were 238 cases involving Chinese Hong Kong, Macao and Taiwan, accounted for 4.74% of total samples. [9]This indicates the proportion to the cases of the same nature, the same below. 34
95.26% 4.74% 涉港澳台案件 Cases involving Hong Kong, Macao and Taiwan The data of cases involving Chinese Hong Kong, Macao and Taiwan are as shown below: Regions Caseload Percentage Hong Kong 130 54.62% Taiwan 105 44.12% Macao 3 1.26% Among the cases involving Chinese Hong Kong, Macao and Taiwan, there were 130 cases involving Hong Kong corporations, accounted for 54.62% of total cases involving Hong Kong, Macao and Taiwan. Among the cases involving Chinese Hong Kong corporations, there were 126 administrative cases and 4 civil cases. The detailed data are as shown below: Case Nature Case Type Caseload Percentage Trademark 122 96.83% Administrative Patent 4 3.17% Civil Patent 4 100% V. Participation of Juries in Trial Among the sample data, there were 3,222 first instance cases which were tried with jury participation, and 604 first instance cases tried without jury participation, and the first instance cases tried with jury participation accounted for 84.21% of total first instance cases; the average rate of juries participation in court per case was 1.44 35
person/times, indicating that democratic participation was relatively highlighted in the first instance cases accepted by the Beijing Intellectual Property Court in 2015. Participation of juries in the cases already concluded by the Beijing Intellectual Property Court in 2015 15.79% 84.21% 有陪审员 With juries 无陪审员 Without juries The statistics about the structure of collegiate bench for the cases tried with jury participation were as shown below: Structure of collegiate bench Caseload (case) 1 judge +2 juries 2276 2 judges +1 jury 946 According to the above table, in the cases closed by the Beijing Intellectual Property Court in 2015, juries participated in court for 5,498 person/times, namely 1.44 person/times of juries participated in court session of every first instance case in average. Part Four Analysis on Judge Team [10] Through a deep analysis on the data of cases closed by the typical judge teams collected in the sample data, the cases closed by the Beijing Intellectual Property Court in 2015 can be deeply understand from points to areas, and in comprehensive details. Therefore, we deeply analyzed the data of the cases closed by a total of 14 teams, namely 3 presidents, 4 presiding judges and 7 judges selected at random from the first 18 personnel-system judges having worked for more than one full year in the Beijing Intellectual Property Court, in order to analyze the judicial work of the [10]The Beijing Intellectual Property Court executes the case handling mode of 1judge+1 assistant to judge+ 1clerk. In this report, the name of each judge is used to represent his/her team. 36
Beijing Intellectual Property Court in 2015 from a microscopic perspective. I. Data of Presidents Among the sample data, the three presidents of the Beijing Intellectual Property Court closed total 162 cases in 2015, namely per capita 54 cases closed, accounted for 3.23% of total samples; the total word account of the cases closed by the presidents was 812,400 words, per capita 270,800 words. Presidents Items SU Chi CHEN Jinchuan SONG Yushui Total number of cases 40 72 50 Trademark 23 61 42 Case Type Patent 3 7 1 Copyright 14 3 7 Others 0 1 0 Case Administrative 25 65 41 Nature Civil 15 7 9 Trial Level First Instance 25 67 41 Second Instance 15 5 9 Case Close Judgment 38 67 42 Ruling 2 5 1 Method Mediation 0 0 7 1. Team of Judge SU Chi Judge SU Chi President, Member of the Judgment Committee, and Judge of the Beijing Intellectual Property Court SU Chi, male, Han Nationality, born in January 1957, graduated as an on-job undergraduate, Doctor of Law, began to work in March 1976. After graduation, he worked at the Beijing High People s Court, successively acted as clerk, assistant judge, judge, and Deputy Division Head. In June 1993, he was transferred to the Beijing 37
Intermediate People s Court, successively acted as judge, Head of Intellectual Property Division, member of the Judgment Committee, and Vice President. In January 2010, he acted as Vice President of the Beijing College of Politics and Law. In July 2013, he was transferred to the Beijing Second Intermediate People s Court, acted as Vice President, member of Judgment Committee, and judge. He has held the present position since November 2014. 1.1. Length of Trial Table 1: Length of Trial (day) Caseload (case) 31-90 6 91-180 18 181-365 14 Table 2: Case Nature Case Type Grounds Average Length of Trial (day) Rejection Appeal 169 Opposition Appeal 245 Invalidation (dispute) 127 Administrative Trademark Other Administrative Disputes 60 Patent Invalidation 173 Dispute over the ownership and infringement of Civil Copyright copyright 143 1.2. Revocation of administrative actions of administrative departments Among the sample data, there were 23 administrative intellectual property authorization and determination cases closed by means of judgment by Judge SU Chi s team, including total 2 cases involving revocation of administrative actions of administrative departments, with a revocation rate of 8.70%. 38
Wherein, there were 21 administrative cases of trademarks closed, including 2 cases involving revocation of administrative actions of administrative departments, with a revocation rate of 9.52%; there were 2 administrative cases of patents closed, including 0 case involving revocation of administrative actions of administrative departments. Revocation rate of the cases about authorization and determination of intellectual property rights of Judge SU Chi's team in 2015 8.70% 撤销率 Revocation rate Revocation rate of the cases about authorization and determination of trademarks of Judge SU Chi's team in 2015 9.52% 商标案件撤销率 Revocation rate of trademark cases 1.3. Word count of the Judgment Contents Word Count Total word count 244,787 Average word count 6,442 Average word count of theoretical part 3,319 1.4. Typical cases 39
(1)Cited Cases: I. (2014)Jing Zhi Xing Chu Zi No.1 Under Article 26(4) of the Patent Law, patent claims should be supported by the specifications. Where the court is construing whether the disputed patent claims are supported by the specifications, a clear line is drawn between closed and open claims, namely, literal interpretation, overall interpretation, purpose of co-invention interpretation, and interpretation of the person having ordinary skill of art. This case actively explored the written judgment format and the reasoning, which gave it a very representative significance. Cited Cases a.(2009) Min Ti Zi No. 20 b.(2011) Gao Xing Zhong Zi No. 607 II. (2015)Jing Zhi Min Zhong Zi No. 559-563 [Key Points of the Judgment] This case further clarified the judgment principle that active target link service provider shall carry a relatively high burden for the contents of the video, and shall be obligated to review whether contents in the linked website is copyrighted. Where the service provider has fulfilled its duty, even if the link ultimately linked to a video with illegal contents, it shall not be deemed to be objectively at fault. This ruling was cited later in the judgment of (2015)Jing Zhi Min Zhong Zi No. 1172. Cited Cases a.(2009) Min Ti Zi No. 17 b.(2009) Min San Zhong Zi No. 2 c.(2011) Min Shen Zi No. 686 d.(2004) Gao Min Zhong Zi No. 1303 e.(2007) Gao Min Chu Zi No. 1201 Note: This case was selected as the Twelve Typical Cases of the Beijing Intellectual Property Court for the First Anniversary. III. (2015) Jing Zhi Xing Chu Zi No. 2474 Key Points in the Judgment: Citing cases of reference proposed by the Beijing High Court, Article 44(1) of the 40
Chinese Trademark Law is applied in a case of administrative dispute regarding trademark opposition review against the action of an applicant for trademark, who has applied in many Classes for a large number of registrations of trademarks which are identical or similar to well-known trademarks of others with an intention of copying and imitating well-known trademarks of others, thus ensuring in an effective way the consistency in juridical criteria. Based on this, the case has, through juridical reasoning in full, provided a clear guide whereby market entities are encouraged to actively draw a line defining business marks and the acts of unfair registration of trademarks by taking advantage of others, and free-riding are deterred. Cited Cases a. (2014) Gao Xing Zhong Zi No. 389 b. (2015) Gao Xing (Zhi) Zhong Zi No. 659 IV.(2015)Jing Zhi Min Zhong Zi No. 478 Search link service provider shall carry a high burden regarding the specific redirections it specially set up. Where it is obvious that this unique and specifically linked website has engaged in information service without consent, and provided complete and lengthy video works, the service provider shall reasonably notify the specific right holder s rights regarding the disputed video. This judgment provided comments on the precedents submitted by the interested parties. (2)Other Typical Case: (2015)Jing Zhi Xing Zhong Zi No. 1518 Key Points of the Judgment This was the first second instance intellectual property administrative case accepted by the Beijing Intellectual Property Court. With respect to the legality of penalty decision made by the Administration of Industry and Commerce, this case pointed out that the administrative enforcement based on authority or interested party s request was different from civil disputes among equal interested civil parties. The exercise of public authority may involve safeguarding of public order and interests, which is an important element in market order maintenance, which the public may rely upon each specific administrative action. Accordingly, the people s court shall also review the 41
legality of each specific administrative action. Upon commission of a specific administrative action, the specific interested parties private rights disposition or settlements shall not be deemed as a justified reason to revoke the specific administrative action. This is to ensure the stability of specific administrative act and the reliance interests thereupon. 2. Team of Judge CHEN Jinchuan CHEN Jinchuan Vice President, Member of the Judgment Committee, and Judge of the Beijing Intellectual Property Court CHEN Jinchuan, male, Han Nationality, born in January 1964, graduated as postgraduate, Master of Law, began to work in August 1989. After graduation, he worked at the Beijing High People s Court, and successively acted as a clerk, assistant judge, judge, Deputy Division Head, division heads, member of the Judgment Committee, full-time member of the Judgment Committee. He has held the present position since November 2014. 2.1. Length of Trial Table 1: Length of Trial (day) Caseload (case) 30 1 31-90 36 91-180 20 181-365 10 Table 2: Case Nature Case Type Grounds Average Length of Trial (day) Trademark Rejection Appeal 83 42
Administrative Civil Patent Trademark Copyright Unfair competition Opposition Appeal 113 Invalidation (dispute) 94 Cancellation Appeal 119 Rejection Appeal 88 Invalidation 147 Dispute over ownership and infringement of 177 trademark rights Dispute over the ownership and 130 infringement of copyright Unfair competition 89 2.2. Revocation of administrative actions of administrative departments Among the sample data, there were 61 administrative intellectual property authorization and determination cases closed by means of judgment by Judge CHEN Jinchuan s team, including total 14 cases involving revocation of administrative actions of administrative departments, with a revocation rate of 22.95%. Wherein, there were 55 administrative cases of trademarks closed, including 13 cases involving revocation of administrative actions of administrative departments, with a revocation rate of 23.64%; there were 6 administrative cases of patents closed, including 1 case involving revocation of administrative actions of administrative departments, with a revocation rate of 16.67%. 43